Introduction

Occupiers’ liability refers to the potential liability of occupiers arising from occasions where visitors suffer injuries on the occupiers’ premises by reason of the occupiers’ failure to maintain the premises safe for use. In Hong Kong, occupiers’ liability is regulated by both the Occupiers Liability Ordinance (Chapter 314, Laws of Hong Kong) (“OLO”) and the common law. This newsletter shall focus on the applicability of the OLO and elaborate on the extent of the occupiers’ duty of care owed to visitors and the requisite standard of care. It then addresses a common misconception about the occupiers’ liability through illustrations.

1.Occupiers’ Duty of Care

To assert the legal rights under the OLO, there must be an ‘occupier’ for the purpose of the OLO. In this regard, an occupier must possess sufficient control over the premises. Such occupier owes a common duty of care to all visitors so that the occupier must take reasonable care to keep visitors reasonably safe in using the premises. Visitors include all persons permitted or invited by the occupier to enter or use the premises, and also those who enter the premises to exercise a right conferred by law, such as police carrying out searches with warrant. Difficulties normally arise in justifying implied permission as the plaintiff needs to further prove that the occupier has knowingly tolerated and has not prevented the plaintiff’s regular intrusions on the premises concerned (Lowery v Walker [1911] AC 10). So far as children are concerned, under exceptional circumstances, if a reasonable man can anticipate that the attractiveness and peril of the premises can allure children to step on the premises, there may be an implied permission for children to enter and use the premises (Latham v R Johnson & Nephew Ltd [1913] 1 KB 398).

In view of the above, persons who enter the premises without permission, for example, trespassers, fall outside the scope of the OLO and shall be governed by common law principles.

2.Standard of Care

One main factor to determine the standard of the common duty of care is the degree of care and of want of care which would ordinarily be looked for in a visitor. Therefore, if the visitor is a child, an occupier is expected to consider children to be less careful than adults and should take extra measures accordingly.

3.Common Misconception

It is a general misconception that a person who sustains an injury on some premises must be entitled to attribute responsibility to the occupier of those premises. In essence, where the injury at issue does not result from the defective state of the premises, it is unlikely that the OLO will apply. In other words, if the peril which gives rise to the injury solely stems from the activities on the premises and is not related to the state of the premises, the aggrieving party should bring a negligence claim under the common law negligence, rather than under the OLO. For example, an occupier hired a contractor to carry out renovation works on his premises. The contractor later sustained injuries when carrying out the necessary works on the premises under a steady and safe environment. In this case, the contractor was permitted by contract to enter the premises as a visitor. However, the injury did not arise from dangers introduced by the state of the premises, but the activity of the renovation instead. While there is no claim under OLO, the contractor may raise a negligence claim against the occupier. Needless to say, whether the contractor can win depends on the facts of the relevant case.

4.Key-Takeaways

Occupiers should be aware of the limited scope of the OLO and with regard to all circumstances maintain their premises in reasonably safe conditions for visitors. To discharge the duty under the OLO, occupiers can take the following into account:

1) Identify the persons who may enter the premises;

2) Carry out regular checks and maintenance on the state of the premises in order to identify and minimize any potential dangers at the first place; and

3) Set out sufficient warnings of any possible dangers in the premises to visitors.

IMPORTANT

Please note that the information above is a preliminary overview of this specialized area of law. As every case depends on its facts, it is imperative to state that the above does not constitute formal legal advice. We do not accept any responsibility whatsoever in respect of this publication. Should you wish to seek our advice or assistance, please do not hesitate to contact us. If you wish to unsubscribe, please inform us by email at mail@allawyers.com.hk.

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